What's really wrong with the Bush Justice Department.

The law, lawyers, and the court.
March 14 2007 5:53 PM

Hyper Hacks

What's really wrong with the Bush Justice Department.

Former US Attorneys. Click image to expand.
Some of the U.S. attorneys fired last year

Our system of government tries to limit the sway of partisan politics over the law by giving life tenure to federal judges. But it doesn't do the same for the attorney general or the lawyers who work for him. They serve at the pleasure of the president, to whom we grant the legal authority to fire anyone from his team for any reason.

The straightforwardness of this rule helps explain why the Bush administration's firing of seven U.S. attorneys at the beginning of December, plus an eighth last summer, didn't immediately ignite into controversy. But what's come out since then makes clear that this targeted removal of prosecutors was different in kind as well as degree from political dramas at the Department of Justice in prior administrations. In the context of other Bush administration assaults on DOJ lawyers, the U.S. attorney scandal confirms the administration's disdain for the nonpolitical tradition of federal law enforcement.

To be sure, the past practices that embodied this tradition weren't codified. Nor are they legally binding. They're the kind of custom recorded by anthropologists more than legal scholars, and they include many exceptions. Yet they have long governed how federal law-enforcement decisions were made. And they have been sturdy enough to keep in check the president's authority to remove lawyers at will for a generation before the current administration.

The attorney general and the lawyers who work for him represent the administration that picks them. But their client is the United States, and the oath they swear is to uphold the nation's laws and the Constitution. The country's 93 U.S. attorneys transform from political appointees into public servants when they join the Justice Department. Once in place, they gain a significant measure of independence. For most crimes, they have the power to indict without approval from "Main Justice," the Washington, D.C. headquarters. This independence is "vital to ensuring the fair and impartial administration of justice," in the words of Mary Jo White, a former U.S. attorney who worked in the Justice Department for both Republican and Democratic attorneys general.

The White House and DoJ are now under fire because, in disrespecting the post of U.S. attorney, they appeared to interfere with the independence of that office in a way that's unprecedented. In the previous quarter-century, according to the Congressional Research Service, no more than five and perhaps only two U.S. attorneys, out of 486 appointed by a president and confirmed by the Senate, have been similarly forced out—in the middle of a presidential term for reasons not related to misconduct. "It would be unprecedented for the Department of Justice or the president to ask for the resignations of United States attorneys during an administration, except in rare instances of misconduct or for other significant cause," White said when she testified in February about the Bush firings before much was known about them. Previous midterm removals include those of a Reagan U.S. attorney fired and convicted for leaking confidential information and a Clinton appointee who resigned under pressure after he lost a major drug case and allegedly went to an adult club and bit a topless dancer on the arm. This time, the stories are quite different.

Why should U.S. attorneys be insulated from presidential politics? White quoted from a 1940 speech to U.S. attorneys by Robert Jackson, then attorney general and later Supreme Court justice: "The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous." The power of law enforcement to tarnish reputations, end people's liberty, and ruin lives, in other words, is so great that it has to be exercised judiciously and, above all, nonpolitically. That's one basic element of the rule of law. U.S. attorneys and other Justice Department lawyers have lived by the declaration of evenhandedness carved into the rotunda of the attorney general's office: "The United States wins its point whenever justice is done its citizens in the courts."

A previous low point for the Justice Department came almost two decades ago, during the Reagan years, when the switchboard sometimes answered, "Ninth Street Disillusionment Center" and the graffiti "Resign," "Leave," and "Sleaze" were scrawled on walls near the office of Attorney General Ed Meese. In 1988, six prominent Republicans resigned. Led by William Weld, then-head of DoJ's criminal division and later the governor of Massachusetts, they said they believed that the Justice Department was too impaired to enforce the law. These political appointees left behind a dispirited bureaucracy. But Meese didn't really tamper with the ranks of career attorneys, who don't normally come and go with the president, or with the department's basic apparatus for enforcement, including the U.S. attorneys' offices.

The early Clinton years brought woes of their own, with two tanked nominees for attorney general before the confirmation of Janet Reno, and the widespread perception that friendship and political loyalty were high on the list of qualifications for senior appointment. But the departure of Associate Attorney General Webb Hubbell, Hillary Clinton's former law partner and the department's crony-in-chief, and the arrival of the Whitewater scandal loosened the department's political leash. And again, the troubles in the senior political ranks didn't infect the U.S. attorneys' offices or the career lawyers.

In the Bush years, by contrast, senior political appointees have applied a political litmus test to the work of career lawyers and punished them for failing it. William Yeomans, a lawyer in the department's Civil Rights Division from 1981 until 2005, told part of this story in Legal Affairs, the magazine I edited. Many leading career attorneys—they number in the dozens—have been forced out, removed, or transferred. In a concerted effort by the Bush administration to remake the career staff, Yeomans says, these veterans were replaced by the hirees of political appointees, chosen with no input from the longtime career staff.

Yeomans also recounted the division's retreat from defending traditional civil rights. Of many examples, the most dramatic involve lack of enforcement of the Voting Rights Act because the beneficiaries would likely support Democratic candidates. For Yeomans and others, working in the Bush administration was very different from their experience in previous Republican and Democratic administrations. Most profound was the halting of conversation between political appointees and career lawyers that had guided law enforcement in the division and elsewhere in the department—"government by discussion," former Attorney General Edward Levi called it. In this administration, political appointees no longer want career attorneys even to make recommendations about how a case should proceed, for fear that ignoring their suggestions could make the politicos look bad.

The dismissal of the U.S. attorneys is a more visible example of the same purgelike practices. Three of the fired U.S. attorneys—David Iglesias of New Mexico, Carol Lam of the southern district of California, and John McKay of the western district of Washington—were lauded by the Justice Department before they were fired. Bud Cummins, former U.S. attorney of Arkansas's eastern district, was told that the only reason he was being pushed out was to make way for J. Timothy Griffin, a protégé of Karl Rove and a one-time Republican National Committee staffer known for his skill at opposition research, not his legal acumen. According to an e-mail from Kyle Sampson, the DoJ official who resigned this week over his role in the firings, getting Griffin appointed "was important to Harriet, Karl, etc."—Harriet Miers, then-White House counsel, and Karl Rove, the president's top political adviser. Given Griffin's thin qualifications for the job, the position of U.S. attorney was reduced to nothing more than a patronage perk.

Home-state politicians and White House officials clearly had a hand in other firings. Allen Weh, chairman of the New Mexico Republican Party, told McClatchy newspapers that in 2005, he urged Karl Rove to have Iglesias fired because he failed to indict some Democrats for voter fraud. Iglesias testified that Sen. Pete Domenici and Rep. Heather Wilson, both Republicans from New Mexico, "leaned on" him for the same reason. In each instance, there was direct and, to Iglesias, sickening political interference. The facts add up to retaliation for a decision not to prosecute, which stabs at the heart of prosecutorial discretion.

As for Lam, she successfully prosecuted and convicted on corruption charges former Republican and San Diego Rep. Randy "Duke" Cunningham. Yesterday on the Senate floor, Arlen Specter, the Republican from Pennsylvania, asked whether she was dismissed because she was "about to investigate other people who were politically powerful." And former U.S. Attorney John McKay felt that he was under pressure from the office of Doc Hastings, a Republican congressman from Washington.

Were Iglesias and McKay fired for not indicting enough Democrats? Lam for threatening to bring down too many Republicans? We don't know for sure. But the lesson of some of the firings could be: Woe to the U.S. attorney who didn't enforce the law as political hacks in the Bush administration dictated. Political directives like this flout the tradition of nonpolitical law enforcement that's essential because of the awesome power of prosecutors. The uproar over the firings seems to have taken the administration by surprise, and it's possible they resulted from incompetence as much as cunning. But an administration's use of law enforcement for political ends has rarely seemed more brazen.

Lincoln Caplan writes about the Supreme Court for the New York Times editorial board and is the author of The Tenth Justice: The Solicitor General and the Rule of Law.